Harm from the Hague

Europeans have energetically opposed and thwarted the attempt to
introduce software patents in Europe. A proposed treaty, now being
negotiated, threatens to subject software developers in Europe and
other countries to U.S. software patents — and other harmful
laws from around the world. The problem is not just for programmers;
authors of all kinds will face new dangers. Even the censorship laws
of various countries could have globalized effect.

The Hague treaty is not actually about patents, or about copyrights, or
about censorship, but it affects all of them. It is a treaty about
jurisdiction, and how one country should treat the court decisions of
another country. The basic idea is reasonable enough: if someone hits
your car in France or breaks a contract with your French company, you
can sue him in France, then bring the judgment to a court in whichever
country he lives in (or has assets in) for enforcement.

The treaty becomes a problem when it is extended to distribution of
information — because information now travels normally and
predictably to all countries. (The Internet is one way, but not the
only way.) The consequence is that you could be sued about the
information you distributed under the laws of any
Hague country, and the judgment would probably be enforced by your
country.

For instance, if you release a software package (either free or not)
in Germany, and people use it in the U.S., you could be sued for
infringing an absurd U.S. software patent. That part does not depend
on Hague — it could happen now. But right now you could ignore
the U.S. judgment, safe in Germany, and the patent holder knows this.
Under the Hague treaty, any German court would be required to enforce
the U.S. judgment against you. In effect, the software patents of any
signatory country would apply to all signatory countries. It isn't
enough to keep software patents out of Europe, if U.S. or Japanese or
Egyptian software patents can reach you there.

But patent law is not the only area of law that could wreak havoc if
globalized by the Hague treaty. Suppose you publish a statement
criticizing a public figure. If copies are read in England, that public
figure could sue you under the strict U.K. libel law. The laws of your
country may support the right to criticize a public figure, but with the
Hague treaty, they won't necessarily protect you any more.

Or suppose you publish a statement comparing your prices with your
competitors' prices. If this is read in Germany, where comparative
advertising is illegal, you could be sued in Germany and the judgment
brought back to you wherever you are. (Subsequent note: I've received
word that this law may have been changed in Germany. The point is the
same, though—any country could have such a law, and some other
European countries may still have one.)

Or suppose you publish a parody. If it is read in Korea, you could be
sued there, since Korea does not recognize a right to parody. (Since
the publication of this article, the Korean Supreme Court affirmed the
right to parody, but the general point remains.)

Or suppose you have political views that a certain government prohibits.
You could be sued in that country, and the judgment against you there
would be enforced wherever you live.

Not long ago, Yahoo was sued in France for having links to U.S. sites
that auctioned Nazi memorabilia, which is lawful in the U.S. After a
French court required Yahoo France to block such links, Yahoo went to
court in the U.S., asking for a ruling that the French judgment cannot
be applied to the parent company in the U.S.

It may come as a surprise to learn that exiled Chinese dissidents
joined the case in support of Yahoo. But they knew what they were
doing — their democracy movement depends on the outcome.

You see, Nazism is not the only political view whose expression is
prohibited in certain places. Criticism of the Chinese government is
also prohibited — in China. If a French court ruling against
Nazi statements is enforceable in the US, or in your country, maybe a
Chinese court ruling against anti-Chinese-government statements will
be enforceable there too. (This might be why China has joined the
Hague treaty negotiations.) The Chinese government can easily adapt
its censorship law so that the Hague treaty would apply to it; all it
has to do is give private individuals (and government agencies) the
right to sue dissident publications.

China is not the only country to ban criticism of the government; as
of this writing, the government of Victoria (Australia) is suing to
suppress a book called Victoria Police Corruption on the grounds that
it “scandalizes the courts.” This book is available on the
Internet outside Australia. Australia is a Hague treaty participant;
if the treaty applies to such cases, an Australian court judgment
against the book could be used to suppress it elsewhere.

Meanwhile, works that criticize Islam have faced increasing censorship
in Egypt, a Hague treaty participant; this too could be globalized by
the Hague treaty.

Americans may turn to the First Amendment to protect them from foreign
judgments against their speech. The draft treaty permits a court to
ignore a foreign judgment that is “manifestly incompatible with
public policy.” That is a stringent criterion, so you cannot
count on it to protect you just because your conduct is legal where
you are. Just what it does cover is up to the particular judge. It
is unlikely to help you against broad foreign interpretations of
copyright, trademarks or software patents, but U.S. courts might use
it to reject outright censorship judgments.

However, even that won't help you if you publish on the Internet,
because your ISP either
has assets in other countries or communicates to the world through
larger ISPs that have them. A censorship judgment
against your site, or any other kind, could be enforced against
your ISP, or your ISP's
ISP, in any other country where it has assets — and
where there is no Bill of Rights, and freedom of speech does not enjoy
the same exalted status as in the U.S. In response, the ISP will shut
off your site. The Hague treaty would globalize pretexts for
lawsuits, but not the protections for civil liberties, so any local
protection could be bypassed.

Does suing your ISP seem far-fetched? It already
happens. When the multinational company Danone announced plans to
close factories in France, Olivier Malnuit opened a site,
jeboycottedanone.com, to criticize this. (The name is French for
“I boycott Danone.”) Danone sued not only him but his site
hosting company and domain name registrar for “counterfeiting of
goods” — and in April 2001 received a ruling prohibiting
Malnuit from mentioning the name “Danone” either in the
domain name or in the text of the site. Even more telling, the
registrar removed the domain in fear before the court made a
ruling.

The natural response for French dissidents is to publish their
criticism of Danone outside France, just as Chinese dissidents publish
their criticism of China outside China. But the Hague treaty would
enable Danone to attack them everywhere. Perhaps even this article
would be suppressed through its ISP or
its ISP's ISP.

The potential effects of the treaty are not limited to laws that exist
today. When 50 countries know that their court judgments could be
enforced throughout North America, Europe and Asia, they would have
plenty of temptation to pass laws just for that purpose.

Suppose, for example, that Microsoft would like to be able to impose
copyright on languages and network protocols. They could approach a
small, poor country and offer to spend $50 million a year there for 20
years, if only that country will pass a law saying that implementing a
Microsoft language or protocol constitutes copyright infringement. They
can surely find some country which would take the offer. Then if you
implement a compatible program, Microsoft could sue you in that country,
and win. When the judge rules in their favor and bans distribution of
your program, the courts in your country will enforce the judgment on
you, obeying the Hague treaty.

Does this seem implausible? In 2000, Cisco pressured Liechtenstein, a
small European country, to legalize software patents. And IBM's chief
lobbyist threatened many European governments with a termination of
investment if they did not support software patents. Meanwhile, the
U.S. trade representative pressured Middle Eastern country Jordan to
allow patents on mathematics.

A meeting of consumer organizations
(http://www.tacd.org) recommended in
May 2001 that patents, copyrights and trademarks (“intellectual
property”) should be excluded from the scope of the Hague
treaty, because these laws vary considerably between countries.

That is a good recommendation, but it only solves part of the problem.
Patents and bizarre extensions of copyright are just two of many excuses
used for suppression of publication in certain countries. To solve the
problem thoroughly, all cases about the legality of distributing or
transmitting particular information should be excluded from
globalization under the treaty, and only the country where the
distributor or transmitter operates should have jurisdiction.